UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FRAZIER CAUDLE, et al.,
Plaintiffs,
v. Civil Action 08-00205 (HHK)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION AND ORDER
In June and July of 2010, a three-week jury trial was held in this case. The jury returned a
verdict for plaintiffs Frazier Caudle, Nikeith Goins, William James, Sholanda Miller, and Donald
Smalls, concluding that the District of Columbia Metropolitan Police Department (“MPD”) had
retaliated against plaintiffs in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. The District now moves for judgment as a matter of law, a new trial, and
remittitur of the jury’s award of damages to four of the five plaintiffs [#297]. Upon
consideration of the motion, the opposition thereto, and the record of this case, the Court
concludes that the motion must be denied.
I. BACKGROUND
In the summer of 2006, the five plaintiffs were members of the MPD First District Focus
Mission Unit (“FMU”), a specialized plainclothes unit composed of “productive” patrol officers
who “graduated to” FMU duty. See Trial Tr. 165–66, 169, June 15, 2010 (test. of Capt. Ralph
McLean). Goins was part of the FMU’s auto theft section; the other plaintiffs were part of its
vice unit. After Lieutenant Ronald Wilkins took charge of the FMU, plaintiffs, who are African
American, came to feel that they were being treated differently from their Caucasian colleagues.
They believed that Wilkins, who is Caucasian, was discriminating against them because of their
race. See, e.g., Trial Tr. 111, June 28, 2010. After a failed attempt to meet with the First District
Commander, Diane Groomes, about Wilkins’s behavior, Caudle, James, Miller, and Smalls
enlisted the help of Caudle’s fiancé, an attorney, in drafting an anonymous letter to Groomes
expressing their concerns about Wilkins. See Trial Tr. 22–23, June 15, 2010; Trial Tr. 124–25,
June 30, 2010. The letter was sent to Groomes on June 16, 2006. See Pls.’ Opp’n Ex. 20
(unsigned letter to Diane Groomes, June 16, 2006). Goins, who was not involved in the
production of the unsigned letter, complained orally to Wilkins about Wilkins’s conduct on
numerous occasions. Trial Tr. 113, June 28, 2010.
On June 25, Officer Chanel Howard, also a member of the FMU, sent an email to
Groomes expressing her belief that Caudle, James, Miller, and Smalls were behind the
anonymous letter. Trial Tr. 17–18, June 21, 2010; Trial Tr. 23–24, June 22, 2010. Wilkins
likewise speculated that those officers were responsible for the letter. Trial Tr. 28–30, June 24,
2010. Shortly after receiving the letter, Groomes called a meeting of all FMU officers, at which
she “explained to them that [she] was in receipt of a letter of complaint and went over parts of
what the complaint was.” Trial Tr. 19, June 22, 2010. After discussing the complaint, Groomes
asked the FMU officers whether “they could work together as a unit.” Trial Tr. 21, June 22,
2010. During the meeting, many of the FMU officers spoke; according to plaintiffs, the other
officers appeared to know who was behind the unsigned complaint, and many officers “t[ook]
shots at” plaintiffs. Trial Tr. 130, June 30, 2010.
Soon thereafter, Groomes decided to require the FMU officers to submit applications to
2
remain in the unit, an apparently unprecedented step that she described as motivated by
performance concerns. Trial Tr. 24–25, June 22, 2010. Caudle, James, Smalls, and Goins each
submitted an application to remain in the FMU. Trial Tr. 51, June 15, 2010; Trial Tr. 115, June
28, 2010; Trial Tr. 34, 134, June 30, 2010.
Plaintiffs were concerned that the reapplication process was a ruse designed to allow their
removal from the unit because of their complaints about Wilkins. While the applications were
pending, Caudle, James, Miller, and Smalls, who had for some time patrolled together in an
unmarked car, were forced to split up and ride with other officers. Trial Tr. 44–45, June 15,
2010; Trial Tr. 32–33, 131, June 30, 2010. They were also excluded from certain FMU
operations. Trial Tr. 42, June 15, 2010; Trial Tr. 131–33, June 30, 2010. Believing these
changes to be retaliatory, all five plaintiffs, along with Greg Philpotts, another FMU officer,
drafted (and signed) a second written complaint, which they sent to the D.C. Office of Human
Rights and the U.S. Department of Justice on August 24, 2006. See Pls.’ Opp’n Ex. 29 (August
24, 2006 written complaint).
When the reapplication process was complete, each plaintiff’s application was denied,
and each was replaced by an officer from the patrol unit. Trial Tr. 41, 139–40, June 30, 2010.
Plaintiffs, who had been praised by their supervising sergeants as effective and capable officers,
see, e.g., Trial Tr. 206–09, June 24, 2010, were devastated. See, e.g., Trial Tr. 120, June 28,
2010. Caudle, who had previously been named FMU Officer of the Year, was sent back to the
patrol unit, which he found “embarrassing and humiliating.” Trial Tr. 41, June 30, 2010. James,
Smalls, and Goins were assigned to a newly created “Intel” unit, of which they were the only
members. Trial Tr. 143–44, June 30, 2010. The Intel unit was eventually dissolved, and James,
3
Smalls, and Goins were returned to patrol positions. Trial Tr. 92, June 15, 2010. Miller, who
had previously requested a transfer to the patrol day shift to allow her to care for her child, Trial
Tr. 44, June 21, 2010, was instead assigned to the patrol evening shift. Trial Tr. 74, June 21,
2010; Trial Tr. 121, June 22, 2010.
Believing all of these events to constitute retaliation for their complaints of
discrimination, plaintiffs filed this action against the District in February 2008. In June and July
of 2010, a jury heard eleven days of testimony. The jury found for plaintiffs, awarding Caudle
and Goins $200,000 each, James and Smalls $250,000 each, and Miller no damages.
II. LEGAL STANDARDS
A. Motion for Judgment as a Matter of Law Under Rule 50
Under Federal Rule of Civil Procedure 50, “[i]f a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue, the court may . . . grant a motion for judgment
as a matter of law against the party.” FED . R. CIV . P. 50(a)(1)(B). Because, however, “a
judgment as a matter of law intrudes upon the rightful province of the jury, it is highly
disfavored.” Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994); accord Breeden v. Novartis
Pharm. Corp., 2011 WL 2652432, at *8 (D.C. Cir. July 8, 2011). Accordingly, the Court’s task
in ruling on such a motion “is limited to evaluating whether [the nonmovant] proffered
‘sufficient evidence upon which a jury could properly base a verdict’ for” the nonmovant.
Boodoo, 21 F.3d at 1161 (quoting Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 828
(D.C. Cir. 1988)) (emphasis omitted). The Court “neither assesses witness credibility nor weighs
4
evidence.” Id. (citing Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 342 (D.C. Cir.
1983)). If a reasonable jury could have found for the nonmovant, the motion must be denied.
See Breeden, 2011 WL 2652432, at *8 (citing Conseil Alain Aboudaram, S.A. v. de Groote, 460
F.3d 46, 50 (D.C. Cir. 2006)).
B. Motion for a New Trial Under Rule 59
Rule 59 provides that, after a jury trial, “[t]he court may, on motion, grant a new trial on
all or some of the issues . . . for any reason for which a new trial has heretofore been granted in
an action at law in federal court.” FED . R. CIV . P. 59(a)(1)(A). Under this standard, “[t]he
decision to grant or deny such a motion lies within the sound discretion of the court.” In re
Lorazepam & Clorazepate Antitrust Litig., 467 F. Supp. 2d 74, 87 (D.D.C. 2006) (citing Grogan
v. Gen. Maint. Co., 763 F.2d 444, 448 (D.C. Cir. 1985); Machesney v. Larry Bruni, M.D., P.C.,
905 F. Supp. 1122, 1130 (D.D.C. 1995)). And, to protect the province of the jury, “such a
motion should be granted only when the court is convinced that the jury verdict was a ‘seriously
erroneous result’ and where denial of the motion will result in a ‘clear miscarriage of justice.’”
Id. (quoting Warren v. Thompson, 224 F.R.D. 236, 239 (D.D.C. 2004)). “[M]inor evidentiary
errors” will not warrant a new trial. See id.
C. Motion for Remittitur
“In reviewing the actual amount of a jury’s award, [the Court’s] task is limited and a
reluctance to interfere is [its] touchstone.” Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1238
(D.C. Cir. 1984). Therefore, a jury’s award will be reduced only where “(1) the verdict is beyond
all reason, so as to shock the conscience, or (2) the verdict is so inordinately large as to obviously
exceed the maximum limit of a reasonable range within which the jury may properly operate.”
5
Peyton v. DiMario, 287 F.3d 1121, 1126 (D.C. Cir. 2002) (citing Jeffries v. Potomac Dev. Corp.,
822 F.2d 87, 96 (D.C. Cir. 1987); Williams v. Steuart Motor Co., 494 F.2d 1074, 1085 (D.C. Cir.
1974)). And “[a] court must be especially hesitant to disturb a jury’s determination of damages
in cases involving intangible and non-economic injuries.” Langevine v. District of Columbia,
106 F.3d 1018, 1024 (D.C. Cir. 1997) (citing Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st
Cir. 1991)). The burden of establishing that the jury’s award was excessive rests with the party
challenging it. See Carter, 727 F.2d at 1239.
III. ANALYSIS
A. Judgment as a Matter of Law
The District first moves for judgment as a matter of law, arguing that plaintiffs failed to
present evidence sufficient to establish any of the three elements of a Title VII retaliation claim:
protected activity, materially adverse action, and a causal connection between the two. Def.’s
Mem. in Supp. of Mot. for J. as a Matter of Law, New Trial, and Remittitur (“Def.’s Mem.”) at
10; see Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007); Hussain v. Nicholson, 435 F.3d
359, 366 (D.C. Cir. 2006); Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002). The Court
will consider each element in turn.
1. Protected Activity
Title VII protects two types of activity: opposition activity (opposing “any practice made
an unlawful employment practice by” Title VII) and participation activity (making a charge,
testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing
under Title VII). 42 U.S.C. § 2000e-3(a); see also Crawford v. Metro. Gov’t of Nashville &
6
Davidson Cnty., 555 U.S. 271, —, 129 S. Ct. 846, 850 (2009). Here, plaintiffs contend that their
trial evidence established at least four different protected activities: “(a) complaining of
discrimination by the June 16, 2006 letter complaint; (b) orally complaining of race-based
disparate treatment; (c) submitting [the] August 24, 2006 written complaint of discrimination and
retaliation; and (d) filing formal charges of discrimination in the fall of 2006.” Pls.’ Opp’n at 10.
To begin with, the unsigned June 16 letter sent to Groomes by Caudle, James, Smalls,
and Miller clearly constituted protected activity: the letter expressly complained of racially
motivated disparate treatment, see Pls.’ Opp’n Ex. 20 (unsigned letter to Diane Groomes, June
16, 2006), and “Title VII protects informal complaints such as letters.” Mansfield v. Billington,
432 F. Supp. 2d 64, 73 n.3 (D.D.C. 2006). The District contends that the letter cannot be
protected because Groomes never learned who wrote it, Def.’s Mem. at 13, but an employer’s
knowledge of an employee’s protected activity does not impact whether that activity is protected;
rather, employer knowledge is properly considered as part of the causal-connection inquiry. See,
e.g., Mazloum v. District of Columbia, 442 F. Supp. 2d 1, 13 (D.D.C. 2006). Thus, the Court
will address this argument below, when it discusses the causal-connection element. See infra
section III.A.3.a.1
Likewise, the jury had a sufficient evidentiary basis to conclude that Goins (who was not
involved in the drafting of the June 16 letter) engaged in protected activity. Goins testified at
1
Plaintiffs also understand the District to challenge the protected status of the June
16 letter on the ground that plaintiffs did not themselves write it, but rather asked Caudle’s then-
fiancé, an attorney, to do so on their behalf. It is unclear to the Court whether the District
actually makes such an argument; regardless, the fact that the letter was drafted on plaintiffs’
behalf by a third party is irrelevant. See Singletary v. District of Columbia, 351 F.3d 519, 525
(D.C. Cir. 2003) (finding “no doubt” that letters drafted by the plaintiff’s attorney “constituted
protected conduct under Title VII”).
7
trial that he complained regularly about Wilkins’s “unfair treatment” directly to Wilkins. See
Trial Tr. 113, June 28, 2010 (“Whenever I felt unfair treatment, I would speak up all the time.”).
The District points out that, although Goins complained of “unfair treatment,” he never referred
expressly to racial bias while doing so. See Trial Tr. 38–39, June 29, 2010. And the District
rightly observes that, to be protected by Title VII, a “complaint must in some way allege unlawful
discrimination.” Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006) (emphasis
added). But no “magic words” are required, id.; rather, “the communication of a complaint of
unlawful discrimination . . . may be inferred or implied from the surrounding facts.” Mazloum,
442 F. Supp. 2d at 13 (quoting Carter-Obayuwana v. Howard Univ., 764 A.2d 779, 790 (D.C.
2001)) (omission in original) (internal quotation marks omitted). Here, Goins testified repeatedly
that the context and content of his complaints made their nature clear. See, e.g., Trial Tr. 38,
June 29, 2010 (“I complained to the lieutenant. I mean, I made it well known. I might not have
said to my race [sic], but, believe me, . . . it was clear in what I was saying.”). The jury could
have credited this testimony and concluded that Wilkins was aware of the nature of Goins’s
complaints.2 Moreover, it is undisputed that Goins joined the other four plaintiffs in submitting
the August 24 written complaint to the D.C. Office of Human Rights and the U.S. Department of
Justice. See Pls.’ Opp’n Ex. 29 (August 24, 2006 written complaint) at 8. And it is clear that the
2
The District also contends that “Goins made no showing at trial that his [oral]
complaints pre-dated . . . [the] decision to reorganize the Focus Mission Unit.” Def.’s Mem. at
18. This is simply incorrect; Goins testified that he had already complained to Wilkins before the
other plaintiffs submitted the anonymous letter on June 16; the FMU was not reorganized until
after that date. See Trial Tr. 114, June 28, 2010.
8
August 24 complaint was protected by Title VII.3 Accordingly, the jury’s conclusion that Goins,
like the other plaintiffs, engaged in protected activity is supported by the record.4
2. Materially Adverse Action
The second element of a Title VII retaliation claim is materially adverse action. A
materially adverse action is one that “well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006))
(internal quotation mark omitted). This standard requires the Court, or a juror, to ask “whether
the objective ‘reasonable worker’ would have been dissuaded from making [or supporting] a
discrimination complaint.” Baloch v. Kempthorne, 550 F.3d 1191, 1199 n.5 (D.C. Cir. 2008)
(quoting Burlington N., 548 U.S. at 68). Whether any given act would have that effect “will
often depend upon the particular circumstances. Context matters.” Burlington N., 548 U.S. at
69. For that reason, the Court will consider the reorganization of the FMU (and the denial of
Caudle’s, James’s, Smalls’s, and Goins’s applications) separately from the denial of Miller’s
transfer request.
a. FMU Reorganization
Plaintiffs contend that each of the three steps in the FMU reorganization constituted a
separate materially adverse action: the reapplication requirement, the denial of plaintiffs’
3
As with the June 16 letter, the District argues that MPD officials were unaware of
the August 24 complaint. But, as explained above, that fact goes to whether a causal connection
exists between the complaint and any adverse action, not whether the complaint was protected.
4
Plaintiffs’ September and October EEOC complaints were also clearly protected,
but, as the District points out, those activities could not have caused any of the materially adverse
actions that preceded them.
9
applications, and plaintiffs’ subsequent transfers to the patrol and intelligence units. Whether
that is true, however, the Court need not determine; a reasonable jury, considering all of these
steps together, could have concluded that each plaintiff experienced materially adverse action.
There is ample support in the trial record for the proposition that the FMU was a
exceptional, desirable assignment that provided professional opportunities not otherwise
available to First District MPD officers. Captain Ralph McLean, who had supervisory authority
over the First District FMU, testified that “productive” patrol officers might earn a position with
the FMU, where they would generally have more chances to make arrests and go to court than
were available in patrol. Trial Tr. 169–70, June 15, 2010. Further, officers had more
opportunities in the FMU to earn overtime pay than they did in either patrol or the Intel unit.
Trial Tr. 20–21, June 29, 2010. For these reasons, among others, patrol officers aspired to FMU
positions. See, e.g., Trial Tr. 8–9, June 30, 2010. Consequently, Caudle, who was removed from
the FMU and returned to a patrol position, experienced diminished responsibility, professional
opportunities, prestige, and job satisfaction. These changes are sufficient to allow a reasonable
juror to conclude that he experienced materially adverse action. See Forkkio v. Powell, 306 F.3d
1127, 1131 (D.C. Cir. 2002) (“‘[R]eassignment with significantly different responsibilities . . .’
generally indicates an adverse action.” (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998))); cf. Medina v. District of Columbia, 517 F. Supp. 2d 272, 289 (D.D.C. 2007) (holding
that “[d]enying an [MPD officer] a transfer back into a specialized division like [the Office of
Internal Affairs] in which he has expertise might well dissuade a reasonable employee from
10
making or supporting his charge of discrimination”).5
The same is true as to James, Smalls, and Goins, who were assigned to the newly created
Intel unit (of which they were the only members). Trial Tr. 143–44, June 30, 2010. The Intel
unit lacked a defined portfolio and was arguably redundant with MPD’s central Intelligence
Division. Trial Tr. 80–81, June 15, 2010 (test. of William James) (describing the MPD’s
“citywide Intel” division); Trial Tr. 115, June 22, 2010 (test. of Diane Groomes) (acknowledging
that the Intel unit had “no written plan or definition”); Trial Tr. 32, 34, June 28, 2010 (test. of
Cmdr. David Kamperin) (acknowledging the concern that the Intel unit “was a duplication of
services”). Unlike their FMU counterparts, the Intel officers did not enjoy access to their own
department vehicle, and spent the majority of their time at their desks. Trial Tr. 82, June 15,
2010; Trial Tr. 118, June 22, 2010. The Intel officers did not participate in the field activities
(observation posts, arrest teams, etc.) that were common during FMU duty. Trial Tr. 85, June 15,
2010. And they had fewer opportunities to earn overtime pay. Trial Tr. 85, June 15, 2010; see
Mentzer v. Lanier, 677 F. Supp. 2d 242, 252 (D.D.C. 2010) (holding that a police officer’s loss
of “opportunities for overtime” can contribute to a finding of material adversity). The jury thus
had ample reason to conclude that James, Smalls, and Goins had “significantly diminished
5
The District makes two responses as to Caudle, neither of which is persuasive.
First, it contends that Caudle’s transfer to patrol caused no “diminution in [his] title, salary, rank,
or grade,” or any similar consequence for the terms or conditions of his employment. Def.’s
Mem. at 23. But this argument relies on the adverse-action standard that governs Title VII
discrimination claims, which is stricter than the Burlington Northern standard used in retaliation
cases. See Baloch, 550 F.3d at 1198 n.4. Second, the District argues that, because Caudle was
“detailed” to the FMU rather than permanently assigned there, “simply requiring him to
apply/compete to remain . . . is not a materially adverse action because no permanency in the
Unit was ever guaranteed.” Def.’s Mem. at 23. Even if accurate, however, this contention
simply has nothing to do with whether a reasonable employee in Caudle’s position would have
been deterred from pursuing a charge of discrimination.
11
responsibilities,” Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007), after their transfer to
the Intel unit. Accordingly, even if that transfer formally constituted a “lateral” reassignment, the
jury still had a sufficient basis to conclude that the transfer was materially adverse. See id. at 364
(noting that lateral transfers can constitute adverse action); Stewart v. Ashcroft, 352 F.3d 422,
426 (D.C. Cir. 2003) (same).6
In sum, the cumulative effect of the FMU reorganization was to remove Caudle, James,
Smalls, and Goins from an elite unit in which they thrived and place them in positions with less
responsibility and fewer opportunities for compensation and advancement. On this record, the
jury’s determination that plaintiffs experienced materially adverse action was eminently
reasonable. See Forkkio, 306 F.3d at 1131; see also Czekalski, 475 F.3d at 365 (“Whether a
particular reassignment of duties constitutes an adverse action for purposes of Title VII is
generally a jury question. The court may not take that question away from the jury if a
reasonable juror could find that the reassignment left the plaintiff with significantly diminished
responsibilities.” (citing Burlington N., 548 U.S. at 71; Holcomb v. Powell, 433 F.3d 889, 902
(D.C. Cir. 2006)) (internal citation omitted)).
b. The Denial of Miller’s Transfer Request
As described above, Miller did not apply to remain in the FMU. During her time in the
unit, Miller worked an evening shift that lasted from 2:30 p.m. to 11:00 p.m. Trial Tr. 41, June
6
The District also contends that Caudle and James could not have experienced
materially adverse action as a result of their transfers because they had previously applied to
leave the FMU. The District presumably means that a reasonable worker would not be deterred
from opposing discrimination by being removed from a unit she had already asked to leave. But
whether or not Caudle and James had previously desired to leave the FMU, it was clear that they
intended to stay when the unit was reorganized, because they applied to keep their positions.
See Trial Tr. 50, June 15, 2010; Trial Tr. 34, June 30, 2010.
12
21, 2010. In early 2006, however, she decided that she needed to be home in the evenings to care
for her daughter. She asked Wilkins to transfer her to the day shift in the FMU, but he refused.
In May, Miller asked Groomes if she could transfer to patrol and take a day shift there. Trial Tr.
45, June 21, 2010; see also Trial Tr. 85, June 24, 2010. Groomes responded that the transfer
would be “no problem” and asked Miller to put her request in writing. Trial Tr. 46, June 21,
2010. Miller submitted her written request in July. Trial Tr. 72, June 21, 2010. In August,
Groomes denied the request. Trial Tr. 74, June 21, 2010. Miller was thus transferred to patrol,
but given an evening shift, which prevented her from being home with her daughter after school.
Trial Tr. 81, June 21, 2010.
The dispositive question here is thus whether the denial of a requested schedule change
can constitute materially adverse action. And that question was effectively answered in
Burlington Northern: in emphasizing that context is essential to a material-adversity
determination, the Supreme Court observed that a “change in an employee’s work schedule may
make little difference to many workers, but may matter enormously to a young mother with
school-age children.” Burlington N., 548 U.S. at 69 (emphasis added). Here, there was ample
evidence that Groomes’s decision not to change Miller’s shift, which prevented Miller from
being at home with her school-age daughter (who had been having trouble in class and with her
homework) “matter[ed] enormously” to Miller. See Trial Tr. 76–77, June 21, 2010 (“[I]t meant
everything to me to be able to get my daughter in the evenings, help her with her homework, and
get her to bed at night.”); see also Trial Tr. 41, 81, June 21, 2010. A reasonable employee in
Miller’s shoes could easily have been dissuaded from pursuing a charge of discrimination if she
knew that doing so would prevent her from spending important time with her child.
13
Accordingly, the jury’s conclusion that Miller experienced materially adverse action was
reasonable and supported by the evidence.7
3. Causal Connection
The final element of a Title VII retaliation claim is a causal connection between the first
two elements; a plaintiff must connect the adverse action she experienced to her protected
activity. See Wiley, 511 F.3d at 155; Stewart, 275 F.3d at 1134. A plaintiff can establish this
connection in multiple ways, including by showing that the employer’s explanation for the
adverse action is “unworthy of credence,” Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009)
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)) (internal quotation
mark omitted); by establishing very close temporal proximity between the protected activity and
the adverse action, see id.; or by pointing to a “pattern of antagonism” on the part of the
employer, id. at 1323 (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 920–21 (3d Cir.
1997)). These various approaches are not exclusive, either mutually or absolutely; “the proffered
evidence, looked at as a whole, may suffice to raise the inference” of causality. Buggs v. Powell,
293 F. Supp. 2d 135, 149 (D.D.C. 2003) (quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d
173 (3d Cir. 1997)) (internal quotation mark omitted); see also Sharma v. District of Columbia,
2011 WL 2418917, at *10 (D.D.C. June 17, 2011) (explaining that the D.C. Circuit has “often
. . . evaluated causation based on the totality of a plaintiff’s allegations”). At the outset, however,
the plaintiff must show that the employer “had knowledge of her protected activity.” Talavera v.
Shah, 638 F.3d 303, 313 (D.C. Cir. 2011). The Court first addresses that issue.
7
The fact, emphasized by the District, that Miller apparently never told Groomes
why she wanted the transfer is simply irrelevant to whether Groomes’s denial of the request
meets the material-adversity standard.
14
a. Employer Knowledge of Protected Activity
As noted above, the District argues that plaintiffs cannot establish a causal connection
between the June 16 letter and the adverse actions they experienced because the letter was
unsigned; thus, the District contends, Groomes did not know who wrote it and could not have
retaliated against plaintiffs for doing so. Def.’s Mem. at 13. The District emphasizes that
Groomes never admitted to knowing who wrote the June 16 letter, and that the email she
received from Howard merely expressed Howard’s “belief” that Caudle, James, Smalls, and
Miller were responsible for it. But plaintiffs need not produce conclusive, direct evidence that
Groomes knew that plaintiffs were behind the letter; they “need only offer circumstantial
evidence that could reasonably support an inference that [she] did.” Jones v. Bernanke, 557 F.3d
670, 679 (D.C. Cir. 2009); accord Talavera, 638 F.3d at 313. Howard’s email — along with
testimony of an apparently open and unanimous belief among FMU personnel that plaintiffs were
responsible for the letter — is sufficient to support such an inference. See Trial Tr. 54, June 21,
2010; Trial Tr. 195–96, June 24, 2010; Trial Tr. 19, 28, June 28, 2010.
Likewise, the Court is unpersuaded by the District’s similar argument that plaintiffs failed
to show at trial that any MPD officials were aware of the August 24 complaint that plaintiffs sent
to the D.C. Office of Human Rights and the U.S. Department of Justice. See Pls.’ Opp’n Ex. 29
(Aug. 24, 2006 written complaint). The District points out that, although the August 24
complaint was not anonymous, it was not sent to Groomes, Wilkins, or any other First District
MPD officials. In addition, neither Groomes nor Wilkins admitted to having any knowledge of
it. But, as plaintiffs observe, Groomes testified that she had read in a letter that members of the
FMU were being excluded from certain operations. Trial Tr. 94, June 23, 2010. And, although
15
Groomes attributed that information to the June 16 letter, the June 16 letter made no reference to
such exclusions; rather, that information appeared only in the August 24 complaint. Compare
Pls.’ Opp’n Ex. 20 (unsigned letter to Diane Groomes, June 16, 2006), with Pls.’ Opp’n Ex. 29
(Aug. 24, 2006 written complaint). Moreover, Howard — who had previously told Groomes that
she believed plaintiffs were behind the June 16 letter — was aware of plaintiffs’ second
complaint (and that Goins was involved in it). Trial Tr. 21, June 21, 2010. The jury could
reasonably have inferred from Groomes’s and Howard’s testimony that Groomes learned of the
August 24 complaint or its substance.8
Accordingly, the Court concludes that the jury had a sufficient evidentiary basis from
which to infer employer knowledge of plaintiffs’ protected activity. Employer knowledge,
however, is a necessary but not sufficient condition to establish a causal connection; thus, the
Court turns to the ultimate question of causation. As above, the Court will consider the denial of
Miller’s requested transfer separately from the reorganization of the FMU.
b. The Reorganization of the FMU
i. Evidence of Pretext
Where, as here, an employer has offered a facially legitimate reason for an allegedly
retaliatory action, the plaintiff’s ability to establish a causal connection will often depend on
whether she can show that the employer’s proffered explanation is “unworthy of credence.”
Taylor, 571 F.3d at 1322 (quoting Burdine, 450 U.S. at 256) (internal quotation mark omitted).
8
There is no merit to the District’s repeated assertions that plaintiffs not only failed
to show that Groomes knew of their protected activity, but also failed to establish a motive for
her alleged retaliation. See, e.g., Def.’s Mem. at 15, 25. There is no requirement that a Title VII
retaliation plaintiff make such a showing. See Wiley, 511 F.3d at 155; Stewart, 275 F.3d at 1134.
16
This is so because a “jury can conclude that an employer who fabricates a false explanation has
something to hide; that ‘something’ may well be [retaliatory] intent.” Colbert v. Tapella, 2011
WL 2417131, at *2 (D.C. Cir. June 17, 2011) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1293 (D.C. Cir. 1998) (en banc)) (internal quotation mark omitted).9 A plaintiff must do more,
however, than simply show that the employer’s explanation is unfair or illogical; she must show
that the proffered reason is not the real reason for the challenged action. See Vatel v. Alliance of
Auto. Mfrs., 627 F.3d 1245, 1248 (D.C. Cir. 2011) (citing Fischbach v. D.C. Dep’t of Corr., 86
F.3d 1180, 1183 (D.C. Cir. 1996)).
Here, the District contends that plaintiffs have failed to rebut its facially legitimate reason
for reorganizing the FMU: that, in the summer of 2006, the unit “lacked cohesion.” Def.’s Reply
to Pls.’ Opp’n (“Def.’s Reply”) at 7–8. For example, Wilkins testified at trial that “tension
[within the FMU] was one of the reasons why [the MPD] did the whole reapplication.” Trial Tr.
34, June 24, 2010. But the District and its witnesses did not always explain the FMU’s
reorganization this way. In its position statement to the D.C. Office of Human Rights (which
was admitted at trial), the MPD explained that the FMU’s reorganization was prompted by
Executive Assistant Chief Fitzgerald, who told Groomes that the FMU’s performance was low
compared to that of other specialized units and that officers were spending too long in the FMU,
which was originally envisioned as a one-to-two-year assignment. Pls.’ Opp’n Ex. 41 (MPD
9
The District is thus wrong to assert that plaintiffs must show not only that the
District’s proffered explanation for its actions is pretextual, but also that “the real reason for the
action was unlawful [retaliation].” Def.’s Reply at 7 (citing St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993)). The D.C. Circuit recently reaffirmed that it has rejected that reading of
Hicks. See Colbert, 2011 WL 2417131, at *2 (citing Aka, 156 F.3d at 1290).
17
position statement) at 2–3.10 Likewise, Groomes testified at trial that the reorganization was
prompted by performance concerns; she denied, however, that replacing officers who had been
with the unit for too long was a goal of the reorganization. Trial Tr. 25, 41–42, 47, June 22,
2010.11 These shifting justifications for the decision to reorganize the FMU are suggestive of
pretext. See Geleta v. Gray, 2011 WL 2417142, at *5 (D.C. Cir. June 17, 2011); see also
Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“[W]hen a company,
at different times, gives different and arguably inconsistent explanations, a jury may infer that the
articulated reasons are pretextual.”).
One common strand, however, does run through the MPD’s position statement and the
testimony of both Groomes and Wilkins: that the FMU was not performing well prior to the
reorganization. See Pls.’ Opp’n Ex. 41 (MPD position statement) at 3; Trial Tr. 25, June 22,
2010; Trial Tr. 34, June 24, 2010. But the jury had further reason to doubt that this explanation
was genuine. The sergeants who supervised the FMU officers on a daily basis testified that the
unit was performing well prior to the reorganization, Trial Tr. 31–32, June 28, 2010 (test. of Sgt.
Valerie Stewart), and that they saw no need for staffing changes. Trial Tr. 201, June 24, 2010
(test. of Sgt. Gregory Wilson); see also Trial Tr. 114–15, June 29, 2010 (test. of Sgt. Dennis
Hance) (stating that Hance had no specific concerns about performance, and “thought everybody
was getting along pretty good”). Likewise, Captain McLean, who was positioned between
10
The position statement does not expressly say whether Fitzgerald ordered
Groomes to reorganize the FMU or merely expressed his “displeasure” about the unit’s
performance and the tenure of its members. Pls.’ Opp’n Ex. 41 (MPD position statement) at 3.
11
Further, several of the officers who were allowed to remain in the FMU after the
reapplication process had already been members for several years. Trial Tr. 47–50, June 22,
2010.
18
Groomes and Wilkins, saw no productivity problems with the FMU and never heard Groomes
express any concerns of her own prior to his departure from the First District in July. See Trial
Tr. at 175–77, June 15, 2010. Alone, this discrepancy is not dispositive; a disagreement among
supervisors as to an employee’s performance does not automatically render a performance-based
justification pretextual. See, e.g., Johnson v. Williams, 117 F. App’x 769, 772 (D.C. Cir. 2004).
But, in combination with the inconsistencies described above (and the discrepancies in the
testimony regarding the FMU selection process, described below), this disagreement between the
FMU’s direct supervisors and the First District higher-ups can contribute to a finding of pretext.
Cf. McBride v. Seidman, 1989 WL 39396, at *9, 11 (D.D.C. Apr. 7, 1989) (finding that the
plaintiff’s age discrimination claim was bolstered by the fact that he had been fired by a regional
director who had ignored the relatively positive performance evaluations and personal opinions
of the plaintiff’s direct supervisors).12
Further problems arise when the Court turns to the District’s explanations for denying the
individual plaintiffs’ applications to remain in the FMU. Wilkins testified that he made a list of
selectees for the FMU vice division with the help of Sergeants Wilson and Steward. Trial Tr.
47–48, June 24, 2010. According to Wilkins, Smalls was rejected because he lacked initiative
and had performance issues, James was rejected because he lacked initiative and was a
“follower,” and Caudle was rejected because of his poor performance. Trial Tr. 53, 59, June 24,
2010; see also Pls.’ Opp’n Ex. 41 (MPD position statement) at 3 (stating that Wilkins identified
12
The Court cannot, however, accept plaintiffs’ contention that the decrease in the
FMU’s performance statistics after the reorganization is strong evidence of pretext. See Pls.’
Opp’n at 33. That the FMU’s performance suffered may show that the reorganization was ill-
considered, but it does not establish that the reorganization was not genuinely intended to address
performance issues. See Fischbach, 86 F.3d at 1183.
19
Smalls and James as “low producers” who should be reassigned). Wilkins also testified that
Wilson and Steward concurred in the decisions to remove these officers from the FMU for these
reasons. Trial Tr. 52–53, 59, June 24, 2010. But Wilson testified that Wilkins never asked him
about whether any current FMU officers should remain, and that he had “no input on who would
be leaving” the FMU. Trial Tr. 201–03, June 24, 2010. Likewise, Steward testified that Wilkins
did not ask her who should stay, and that she made no recommendations as to which officers
should be selected to join or remain in the FMU. Trial Tr. 34–35, June 28, 2010. As to the
specific candidates, Wilson described Smalls as “very knowledgeable,” “a good officer,” and
“kind of a leader,” and stated that she had no concerns about his performance. Trial Tr. 208–09,
June 24, 2010. Likewise, Steward testified that she saw no reason for and “didn’t understand”
James’s removal from the FMU. Trial Tr. 38, June 28, 2010. And Groomes herself testified that
James and Smalls were not, in fact, “low producers,” but rather had “strong performance”;
consequently, she “handpicked” them (along with Goins) to join the new Intel unit. Trial Tr.
110–11, June 22, 2010.13
Thus, Wilkins’s testimony that he recommended candidates to be removed from the FMU
based on their poor performance, after consulting with the sergeants who supervised the officers
directly, was flatly contradicted by the testimony of the sergeants (who disagreed both with
Wilkins’s performance assessments and his description of the selection process) and of Groomes
13
Similarly, Wilkins claimed that he relied on the recommendations of Sergeant
Hance to select candidates for the FMU’s auto theft division, Trial Tr. 48, June 24, 2010, but
Hance testified that he was “left out of that decision-making process” and did not find out about
the reapplications until sometime in early 2007. Trial Tr. 119–20, June 29, 2010. And Wilkins
asserted that he had always had a problem with Caudle’s performance, Trial Tr. 59, June 24,
2010, but admitted to signing off on Caudle’s strong performance evaluations. Trial Tr. 6, June
24, 2010.
20
herself (who explained that she “handpicked” James, Smalls, and Goins for the Intel unit because
of their “strong performance”). As above, these inconsistent explanations for the challenged
employment decisions are probative of pretext. See Geleta, 2011 WL 2417142, at *5;
Domínguez-Cruz, 202 F.3d at 432. Indeed, the jury could reasonably have inferred from the
contradictions between Wilkins’s description of the selection process and the testimony of the
supervising sergeants that Wilkins was dissembling to conceal the true motive behind his
recommendations to Groomes. See Aka, 156 F.3d at 1293 (“If the jury can infer that the
employer’s explanation is not only a mistaken one in terms of the facts, but a lie, that should
provide even stronger evidence of discrimination.”).14
Finally, the jury could have reasonably doubted that the individual plaintiffs were
removed from the FMU for performance reasons because many of the officers whose
applications were accepted were less experienced and had lower performance ratings than did
plaintiffs. See, e.g., Trial Tr. 62, June 24, 2010 (half of the accepted officers had lower
performance ratings than Caudle).15 Indeed, Caudle had been named FMU Officer of the Year.
Trial Tr. 13, June 30, 2010.16 Given the absence of a clear correlation between those officers
14
Likewise, the jury could have concluded from this testimony that the District had
“misstate[d] the candidates’ qualifications” to remain in the FMU, which can support a finding of
pretext. See Aka, 156 F.3d at 1295.
15
If a desire to remove long-tenured officers was a real goal of the reorganization,
then the fact that plaintiffs were replaced by less experienced officers would not be noteworthy;
but Groomes, who made the actual decisions as to which applications to accept, denied that
doing so was a goal of the reorganization process. See Trial Tr. 41–42, 47, June 22, 2010.
16
The District asserts that Caudle was removed, notwithstanding his strong record,
because he had failed to “back up” other FMU officers. But the testimony that Caudle failed to
support other officers came from Steward, see Trial Tr. 61, June 28, 2010, who nevertheless
rated Caudle’s performance during the time in question as exceeding expectations, see Pls.
21
selected for the FMU and either longevity of experience or prior performance assessments, the
jury had further reason to be skeptical of the District’s explanations.17
In sum, the jury, considering all of the foregoing together, could have concluded that the
District’s proffered explanations for the FMU’s reorganization (and the decisions made on
plaintiffs’ individual applications) were simply not credible. Such a conclusion will almost
always justify an inference of unlawful intent. See Colbert, 2011 WL 2417131, at *2 (a jury can
infer unlawful intent from a false explanation, unless there is only a weak issue of fact as to the
explanation’s falsity or conclusive evidence of some other, nondiscriminatory reason for the
decision (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)); see also
Anderson v. Zubieta, 180 F.3d 329, 345 (D.C. Cir. 1999) (“The question is whether the plaintiffs
have cast such doubt on [the defendant’s rationale’s] credibility that a reasonable juror could
regard it as pretext and infer a discriminatory motive . . . .”). Here, however, plaintiffs also
produced other evidence supporting an inference of retaliatory intent.
Opp’n Ex. 42 (MPD Officer Performance Rating Form, Oct. 1, 2004–Sept. 30, 2005), and who
claimed that she reported Caudle’s failure to back up other officers to Wilkins at a time when
Wilkins was not even the FMU’s lieutenant yet. See Trial Tr. 7, June 24, 2010; Trial Tr. 103,
June 28, 2010. In light of these contradictions, the jury could have discounted this testimony —
and even inferred pretext. See EEOC v. D.C. Public Schs., 277 F. Supp. 2d 44, 51 (D.D.C. 2003)
(finding a genuine issue of material fact as to discriminatory intent where an employer’s stated,
performance-based reasons for laying off the plaintiff were not reflected in the plaintiff’s
performance evaluations).
17
That Officer Philpotts was allowed to remain in the FMU despite signing
plaintiffs’ August 24 complaint does little to advance the District’s arguments; as plaintiffs point
out, he was due to be promoted soon, and was thus going to leave the FMU anyway. Trial Tr. 7,
June 29, 2010.
22
ii. Other Evidence of Causation
As noted above, a plaintiff seeking to establish a causal connection between her protected
activity and an adverse action is not limited to calling the employer’s explanation for that action
into question. Close temporal proximity between the protected activity and the adverse action,
see Taylor, 571 F.3d at 1322, or a pattern of antagonism on the part of the employer, id. at 1323,
can also help establish causation.
Here, plaintiffs testified that, at and after the unit-wide meeting at which Groomes
discussed their complaint, they were subjected to ridicule, isolation, and exclusion by the officers
and other members of the FMU. See, e.g., Trial Tr. 30–32, 129–31, June 30, 2010. Smalls
characterized the meeting as “a potshot meeting where everybody was taking shots at us.” Trial
Tr. 130, June 30, 2010; see also Trial Tr. 41–42, June 15, 2010. Soon thereafter, plaintiffs, who
had previously ridden together in one car while on patrol, were “split up and put into different
cars,” which no other FMU officers experienced. Trial Tr. 32–33, 131, June 30, 2010; see also
Trial Tr. 44–45, June 15, 2010. And plaintiffs (and no other officers) were for the first time
excluded from executions of search warrants by the FMU. Trial Tr. 44, June 15, 2010; Trial Tr.
131–33, June 30, 2010. Further, as James testified, plaintiffs were for the first time denied leave,
excluded from briefings on dangerous suspects entering their jurisdiction, and denied information
about observation posts and narcotics operations. Trial Tr. 42–44, June 15, 2010; see also Trial
Tr. 66–67, June 21, 2010; Trial Tr. 31–32, June 30, 2010.
The jury, crediting this testimony, could easily have concluded that, between the time of
their first complaint and the reorganization of the FMU, plaintiffs experienced a “pattern of
antagonism” on the part of the FMU’s officers and members. This pattern, coupled with the
23
timing of plaintiffs’ complaints and the adverse actions described above, and considered along
with the District’s shifting and inconsistent explanations for those actions, supports an inference
of causation. See Buggs, 293 F. Supp. 2d at 149 (noting that “the proffered evidence, looked at
as a whole, may suffice to raise the inference” of causality (emphasis added)); Sharma, 2011 WL
2418917, at *10 (same). Accordingly, the District’s motion for judgment as a matter of law must
be denied as to Caudle, James, Smalls, and Goins.
c. The Denial of Miller’s Transfer
The District contends that plaintiffs introduced no evidence at trial linking Miller’s
participation in plaintiffs’ written complaints to the denial of her request to transfer to the patrol
day shift. Plaintiffs respond that Groomes’s unexplained retraction of her agreement to transfer
Miller, along with the timing of that decision and the fact that there was a vacancy in the patrol
day shift, supported the jury’s verdict. Plaintiffs have the stronger argument.
As Miller testified at trial, she asked Groomes in May 2006 if she could transfer to the
patrol day shift. Trial Tr. 45, June 21, 2010. Groomes responded that a transfer would be “no
problem” and asked Miller to put her request in writing, which Miller did in July. Trial Tr. 46,
72, June 21, 2010. In August — after the June 16 anonymous letter and after Howard’s email to
Groomes suggesting that Miller was involved — Groomes denied the request. Trial Tr. 74, June
21, 2010; Trial Tr. 121, June 22, 2010.
The District has offered no explanation for this reversal. See Def.’s Mem. at 16–17.
Rather, the District argues that Miller’s testimony regarding the May conversation in which
Groomes agreed to the transfer “is insufficient to establish the existence of any promise,”
because Groomes herself does not remember the conversation. Def.’s Reply at 10. This is
24
simply incorrect. If the jury credited Miller’s testimony — which the Court must assume to be
the case at this stage, see Hayman v. Nat’l Acad. of Scis., 23 F.3d 535, 537 (D.C. Cir. 1994) — it
could have concluded that Groomes agreed to the transfer. Moreover, the timing of Groomes’s
still-unexplained reversal supports an inference of retaliation; after Miller submitted her written
request on July 27, Groomes did not respond until August 11, and Wilkins did not notify Miller
of the denial until August 23, after the deadline for FMU officers to apply to keep their positions.
This delay prevented Miller from applying to remain in the FMU with her current shift, which
she would have preferred to an evening-shift patrol position. Trial Tr. 75, June 21, 2010.
Moreover, there was evidence from which the jury could have concluded that there was a
vacant day-shift patrol position at the time of Miller’s request. Although Groomes testified that
no vacancy existed, Trial Tr. 125, June 22, 2010, plaintiffs introduced a First District schedule
for the two-week period starting on July 23, 2006 (four days prior to Miller’s request) that
appeared to show a vacant day-shift patrol position. See Pls.’ Opp’n Ex. 43 (MPD Roll Call
Sheet, July 23, 2006). Further, plaintiffs established through Groomes’s own testimony that,
while Miller’s request was pending, officers junior to her held day-shift patrol positions and that,
after Miller’s request was denied, at least one other officer was added to the day-shift patrol
schedule. Trial Tr. 133, June 22, 2010. The jury, considering all of this evidence — and
especially Groomes’s apparently unexplained reversal — could reasonably have concluded that
Miller’s transfer request was denied because of her participation in protected activity. See
Lathram v. Snow, 336 F.3d 1085, 1094 (D.C. Cir. 2003) (“[A]n unexplained inconsistency [in an
employer’s decision-making process] can justify an inference of discriminatory motive.”).
Accordingly, the District’s motion for judgment as a matter of law must be denied as to Miller.
25
B. New Trial
The District next contends that it is entitled to a new trial “because the verdict was tainted
by the improper admission of evidence, improper argument made by Plaintiffs’ counsel, and the
submission of erroneous legal theories to the jury.” Def.’s Mem. at 29. The District identifies a
raft of supposed errors that ostensibly rendered the trial unfair. The Court will consider each in
turn.
1. Admission of Dr. Lanier’s Tables
First, the District contends that the Court erred by admitting charts produced by Dr. Louis
Lanier, plaintiffs’ expert economist, which quantified the overtime opportunities that plaintiffs
lost as a result of their reassignments. See Pls.’ Opp’n Ex. 44 (Pls.’ Trial Ex. 11A, overtime
summary tables). The District contends that this admission was error because the charts were
irrelevant to the appropriate amount of compensatory damages, and effectively allowed the
plaintiffs to ask for a specific dollar amount in damages (contrary to the Court’s instructions).
Plaintiffs respond that the charts were relevant to the issue of material adversity and that the
Court negated any risk that the jurors would base their damage awards on the charts by
instructing them not to consider or award back-pay damages. Plaintiffs have the stronger
position.
As noted above, a loss of opportunities to earn, or a reduction in, overtime pay can
contribute to a finding of material adversity. See Mentzer, 677 F. Supp. 2d at 252; supra section
III.A.2.a. Accordingly, the extent to which plaintiffs’ transfers reduced their ability to earn
overtime pay is relevant to whether plaintiffs experienced materially adverse action, and the
District’s argument that the charts should have been excluded as irrelevant is incorrect.
26
Likewise, the Court cannot agree that the charts effectively allowed plaintiffs to request a specific
dollar figure in damages; as plaintiffs point out, the Court expressly instructed the jury that it
“should not consider any damages for any backpay that a plaintiff may have lost or compensation
for employment that a plaintiff might lose in the future. Those items of damages are not within
your province as the jury, but are [the Court’s] responsibility.” Trial Tr. 21, July 7, 2010. The
Court sees no basis to conclude that the jury flouted this clear instruction.
In its reply brief, the District offers another objection to Lanier’s charts: that, because they
were based on a flawed methodology that conflicted with the Fair Labor Standards Act, 29
U.S.C. § 201 et seq., and the District’s municipal regulations, the charts overcounted plaintiffs’
overtime hours. Thus, the District argues, the Court should have excluded the charts or at least
allowed the District to explore Lanier’s methodology on cross-examination. But, as plaintiffs
point out, Lanier’s overtime determinations were based solely on the data provided by the MPD,
which identified hours worked as regular, overtime, or court-overtime. See Pls.’ Surreply Ex. 1
(sample pay data); Trial Tr. 165, June 29, 2010 (“Q: Did you exercise any discretion regarding
what was an overtime hour and what was not an overtime hour? A: No. I made no
determination of that. The data that were already provided had the overtime hours already
marked.”). Thus, the District’s data, rather than Lanier’s methodology, were responsible for any
errors in his overtime tabulations, and any exploration thereof on cross-examination would not
have aided the District in clarifying this issue. And, more importantly, given the charts’ minimal
role in establishing material adversity — as discussed above, there was ample reason for the jury
to find that plaintiffs’ transfers constituted materially adverse action — the Court cannot
conclude that the alleged errors in the charts resulted in anything more than a “minor evidentiary
27
error[].” In re Lorazepam & Clorazepate Antitrust Litig., 467 F. Supp. 2d at 87.
2. “Golden Rule” Violations
The District next asserts that plaintiffs’ counsel made three impermissible “golden rule”
arguments — that is, arguments that asked the jurors to imagine themselves in plaintiffs’ shoes
— and that the Court’s inadequate response to these arguments biased the jurors, causing them to
“lash out at the District.” Def.’s Mem. at 34–35. Plaintiffs rejoin that no golden rule violations
occurred, but that, even if they did, they were rendered harmless by the Court’s sustaining the
District’s objections and issuing curative jury instructions. Pls.’ Opp’n at 44. Plaintiffs are
correct.
During her closing argument, plaintiffs’ counsel made three comments that the District
contends were improper golden rule arguments. Plaintiffs vigorously dispute the District’s
characterization. They argue that two of counsel’s statements18 were actually intended to aid the
jurors in applying the material-adversity standard articulated in Burlington Northern, which
requires the factfinder to ask whether the defendant’s conduct would dissuade “a reasonable
person in the plaintiff’s position” from pursuing a charge of discrimination. See Burlington N.,
18
Counsel’s first two comments, both of which were truncated by objections, went
as follows:
PLAINTIFFS’ COUNSEL: You heard plaintiffs explain that they felt humiliated,
berated, and isolated at the meeting listening to their supervisors and peers comment
on their discrimination complaint. Now, ask yourself, would you hesitate to speak
up if you knew that speaking up would mean that your boss would call a meeting
with your entire office —
...
PLAINTIFFS’ COUNSEL: Officer Chaplin likewise testified he was worried about
the reapplication because he wanted to stay in the FMU. Ask yourself this: Wouldn’t
you think twice about complaining about workplace discrimination —
Trial Tr. 11, 12, July 6, 2010.
28
548 U.S. at 71 (emphasis added). And, plaintiffs contend, the third comment19 was intended only
to communicate the gravity of plaintiffs’ injuries, not to appeal to the jury’s emotions. These
arguments are not without force; regardless, the Court need not decide whether counsel’s
comments were actually golden rule arguments because, even if they were, no prejudice could
possibly have resulted. See Ins. Co. of N. Am. v. U.S. Gypsum Co., 870 F.2d 148, 154 (4th Cir.
1989) (“The law is clear that although it is improper to ask jurors to place themselves in the
position of a party, such a ‘golden rule’ argument does not constitute reversible error if no
prejudice arise[s] from counsel’s comment.”).20
In all three instances, the District objected before plaintiffs’ counsel finished the
offending sentence, and in all three instances the Court sustained the District’s objection. Trial
Tr. 11, 12, 50, July 6, 2010. After the third comment, the Court noted that plaintiffs’ counsel had
made an improper golden rule argument and instructed the jury to disregard it. Trial Tr. 50–51,
July 6, 2010. Finally, in the general jury instructions, the Court directed the jurors to “decide the
facts of this case only from a fair evaluation of all of the evidence without prejudice, sympathy,
fear, favor, or public opinion.” Trial Tr. 6, July 7, 2010. Because the Court’s specific instruction
following the third comment, in combination with these general instructions, sufficed to cure any
19
Counsel’s third comment, also cut short by an objection, was this:
PLAINTIFFS’ COUNSEL: Now, in the end it is your job to determine how to make
plaintiffs whole for what they have had to endure. As you make those decisions, we
ask yourselves to put yourselves in the plaintiffs’ shoes. What would it do to you to
have your complaint broadcast to your entire office, to be the only one excluded —
Trial Tr. 50, July 6, 2010.
20
There is a circuit split (unimportant here because of the lack of prejudice) on
whether golden rule arguments are impermissible at all times, or only as to the issue of damages.
Compare, e.g., McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1071 n.3 (11th Cir. 1996),
with Edwards v. City of Philadelphia, 860 F.2d 568, 574 n.6 (3d Cir. 1988).
29
minimal prejudice that might have arisen from counsel’s comments, those comments do not
warrant a new trial. See United States v. Teslim, 869 F.2d 316, 328 (7th Cir. 1989) (finding that,
although the prosecutor’s golden rule comment was improper, it was not so prejudicial as to
deprive the defendant of a fair trial because the defense immediately objected to the comment,
the court sustained the objection, and the prosecutor rephrased the argument); Edwards v. City of
Philadelphia, 860 F.2d 568, 574 (3d Cir. 1988) (“[A] clear and complete jury instruction on the
elements of the claim asserted and on the allocation of the burdens of proof . . . is sufficient to
cure harm caused by a ‘Golden Rule’ argument.”); Loose v. Offshore Navigation, Inc., 670 F.2d
493, 497 (5th Cir. 1982) (noting that after a golden rule violation the “trial judge may, by
appropriate instruction, salve the suit”).
3. Reapplication Issues
Next, the District makes a number of interconnected arguments regarding whether
plaintiffs did in fact apply to remain in the FMU. The first relates to the District’s failure to
preserve the plaintiffs’ application forms (with the exception of a fragment of Goins’s form,
discussed below), known as “PD 681s.” In light of that failure, the Court instructed the jury (at
plaintiffs’ request) that
the defendant had an obligation to preserve the reapplications submitted by officers
as part of [the FMU reapplication process]. . . . The defendant violated its duty to
preserve these reapplications and instead allowed them to be lost or destroyed. That,
as a result, you can draw, but are not required to draw, all reasonable inferences
against the defendant regarding the content of the missing reapplications. That
means that you can conclude, but are not required to conclude, that if the
reapplications had been kept[,] the records would have supported a plaintiff’s claim
....
Trial Tr. 14–15, July 7, 2010. The District argues that this instruction was improper because the
30
District had no obligation to preserve the applications and did not intentionally destroy them, and
because the applications were not necessary. The District is incorrect.
An adverse-inference instruction of this sort is appropriate where (1) “the party having
control over the evidence had an obligation to preserve it when it was destroyed or altered”; (2)
“the destruction or loss was accompanied by a culpable state of mind”; and (3) a reasonable
factfinder could conclude that the lost evidence would have supported the claims or defense of
the party that sought it. Mazloum v. D.C. Metro. Police Dep’t, 530 F. Supp. 2d 282, 291 (D.D.C.
2008) (quoting Thompson v. HUD, 219 F.R.D. 93, 1010 (D. Md. 2003)) (internal quotation
marks omitted).
Here, the District, like any party, had an obligation to preserve evidence that it should
have known might be relevant to future litigation, id., and plaintiffs’ late-2006 written complaints
and EEOC charges (which expressly challenged the FMU reapplication) put the District on
notice of potential litigation regarding this matter. Further, the District is incorrect that plaintiffs
must show that the evidence was deliberately destroyed; in this context, a “culpable state of
mind” encompasses mere negligence. Id. at 292 (citing More v. Snow, 480 F. Supp. 2d 257, 275
(D.D.C. 2007)); see also Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108
(2d Cir. 2002). And lastly, the applications would clearly have supported plaintiffs’ claims here,
both by showing that plaintiffs did in fact reapply for their positions and by aiding plaintiffs in
comparing their credentials to those of the officers who were selected. See Lathram, 336 F.3d at
1091–92 (comparison of credentials can be relevant to a finding of pretext). Accordingly, the
District is incorrect that the adverse-inference instruction was improper.
The District’s next argument concerns Goins’s application to remain in the FMU. In its
31
responses to plaintiffs’ pre-trial interrogatories, the District identified Goins as one of the officers
who reapplied to the FMU. See Pls.’ Opp’n Ex. 53 (District’s amended responses to plaintiffs’
first set of interrogatories) at 8–11. The District also admitted to producing Goins’s application
(although only half of it) during discovery, see Pls.’ Opp’n Ex. 47 (District’s responses to
plaintiffs’ second set of requests for admission) at 38, and did not object when plaintiffs listed
that document on their pre-trial exhibit list. At trial, however, the District contended that Goins
had applied to the FMU but not to the auto theft division thereof, and challenged the authenticity
of the partial application form (which it had produced). Accordingly, at plaintiffs’ request, the
Court ruled that the District could not elicit testimony that Goins failed to apply to the auto theft
unit, and further that certain exhibits in which the District had made that assertion be redacted.
See Trial Tr. 3–4, June 24, 2010.
The District now challenges these rulings on the basis that its failure to produce Goins’s
complete application form should not have prevented it from questioning him about his
application. This position is without merit, for two reasons. First, the District’s argument
entirely overlooks the contradiction between the position it took at trial and its own averments
before the trial commenced; although the District contends that it was effectively ambushed by
the Court’s rulings, it was in fact the District’s sudden reversal that was potentially unfair. See
Ard v. Metro-N. R.R., 492 F. Supp. 2d 95, 104–05 (D. Conn. 2007) (holding that it was proper to
prevent the defendant from taking a position at trial that contradicted the position taken in its
discovery responses). Second, as plaintiffs point out, it was the District’s failure to preserve
Goins’s entire application form that enabled the District to suggest that he had not applied to both
FMU components (and to question the authenticity of the fragmentary form itself). Thus, the
32
Court’s ruling preventing the District from eliciting certain testimony was a necessary remedy for
the District’s misconduct, as was the ruling that certain exhibits be redacted.21
4. Verdict Form
Next, the District challenges the Court’s approval of a verdict form that did not ask jurors
whether the individual elements of a Title VII retaliation claim had been established, instead
asking as to each plaintiff: “Do you find that defendant violated [the individual plaintiff’s] rights
under Title VII of the Civil Rights Act of 1964?” See Verdict Forms [#283]. The District avers
that a general verdict form of this type was inappropriate for use in this case because it allowed
the jury to base liability on Wilkins’s alleged racial discrimination rather than the District’s
alleged retaliatory acts. The District further asserts that the absence of special interrogatories
regarding some of the specific issues discussed above (such as the protected status of plaintiffs’
August 24 letter, or the materially adverse nature of the District’s actions) “rendered core
elements of the Plaintiffs’ case and the District’s defense virtually meaningless.” Def.’s Mem. at
38. These arguments are meritless.
It is well established that a verdict form should not be considered in isolation, but must
instead be evaluated in conjunction with the jury instructions. See, e.g., Weston v. Wash. Metro.
Area Transit Auth., 78 F.3d 682, 687 (D.C. Cir. 1996) (finding no error where, “[a]lthough the
verdict form might have been clearer,” “the district court correctly instructed the jury on the
law”); see also United States v. Riccio, 529 F.3d 40, 47 (1st Cir. 2008) (“[W]e review the
21
The District somehow manages to argue both that it should have been allowed to
argue that Goins did not timely submit an application form, and that no application form “was
particularly probative of any fact at issue.” Def.’s Mem. at 36 n.9. These contradictory positions
do not advance the District’s argument that the Court’s adverse-inference and redaction rulings
were erroneous.
33
[verdict] form as a whole, in conjunction with the jury instructions, in order to determine whether
the issues were fairly presented to the jury.”). Here, the jury instructions made clear that each
plaintiff “must prove every element of his or her claim . . . by a preponderance of the evidence,”
and that “the case of each plaintiff is separate from and independent of that of any other
plaintiff.” Trial Tr. 7, July 7, 2010. The instructions also laid out the elements of a retaliation
claim under Title VII and defined each element. See Trial Tr. at 15–19, July 7, 2010. And they
expressly stated that “[e]ach plaintiff has only sued the defendant for retaliation and not for race
discrimination. Therefore, the validity of each plaintiff’s allegations of discrimination is not
before you.” Trial Tr. at 19, July 7, 2010 (emphasis added). The jury is presumed to have
followed these instructions. CSX Transp., Inc. v. Hensley, —U.S.—, 129 S. Ct. 2139, 2141
(2009).
In light of these clear instructions — to which the District apparently has no objection —
the District’s arguments must fail. The jury instructions expressly foreclosed the possibility that
the jury could base its finding of liability on race discrimination rather than retaliation. Likewise,
because the instructions identified and defined each element of a retaliation claim, there was no
need for the verdict form to do the same. See, e.g., Martin v. Howard Univ., 2006 WL 2850656,
at *7 (D.D.C. Oct. 4, 2006) (holding that the verdict form in a Title VII retaliation case did not
need to include specific language regarding material adversity because the jury instructions
included the relevant standard). Nor were special interrogatories addressing the specific issues
raised by the District necessary; given the clarity of the instructions, there was minimal risk that
the jury would base its finding of liability on either activity that was unprotected by Title VII or
action that did not rise to the level of material adversity.
34
5. Other Asserted Errors
In the midst of its discussion of Dr. Lanier’s charts, the District presents a list of thirteen
other asserted errors that, it avers, collectively warrant a new trial. See Def.’s Mem. at 31–32.
Each of these asserted errors is presented in bullet-point form, with almost no explanation and no
supporting record or case citations (although some refer to the more detailed arguments discussed
above). As plaintiffs observe, “[a] trial court is not required to ‘parse through transcripts’ in an
effort to identify the grounds of a post-trial motion.” Warren, 224 F.R.D. at 239 n.7 (quoting
Manion v. Am. Airlines, Inc., 217 F.R.D. 276, 278 n.3 (D.D.C. 2003)). Thus, this collection of
scattershot objections does little to carry the District’s “heavy burden” in showing that a new trial
is warranted, Webb v. Hyman, 861 F. Supp. 1094, 1109 (D.D.C. 1994), especially given that the
District fails to explain how any of these errors “result[ed] in a ‘clear miscarriage of justice.’” In
re Lorazepam & Clorazepate Antitrust Litig., 467 F. Supp. 2d at 87 (quoting Warren, 224 F.R.D.
at 239). Nevertheless, the Court will briefly address some of these contentions.
First, the Court did not err by admitting the District’s position statements (the redaction
of which is discussed above); as the Court has already explained, the District’s position
statements illustrated that it had offered shifting and arguably inconsistent explanations for the
challenged employment actions and were thus probative of pretext. See supra section III.1.3.b.i;
see also Am. Ctr. for Int’l Labor Solidarity v. Fed. Ins. Co., 548 F.3d 1103, 1105 (D.C. Cir.
2008) (noting that “position statements submitted by the charged party [during an administrative
process] may all be admissible as relevant evidence in subsequent litigation”).
Second, the propriety of the Court’s rulings preventing the District from introducing
evidence intended to rebut testimony about Miller’s character is irrelevant, because the District
35
expressly states that it is not moving for a new trial as to Miller’s claim. Any error regarding
evidence relevant only to Miller’s claim is thus immaterial here.
Third, the Court did not err by excluding evidence that Groomes, Steward, Wilson, and
Wilkins “exercised their discretion favorably” toward Smalls, Caudle, and Goins after May 2006.
As plaintiffs correctly observe, see Pls.’ Opp’n at 60–61, these officials’ completion of
apparently routine paperwork related to plaintiffs is largely irrelevant to whether there was a
causal connection between plaintiffs’ protected activity and the specific materially adverse
actions discussed above.
Fourth, the Court did not err by allowing testimony regarding the dissolution of the Intel
unit in 2008; contrary to the District’s repeated assertions, plaintiffs have never offered that event
as a separate materially adverse action, but rather as further evidence that their original transfers
to the Intel unit were adverse. See Pls.’ Opp’n at 41. Because the dissolution of the Intel unit
supports plaintiffs’ position that the unit itself was largely redundant and unnecessary, this
testimony was relevant and admissible.
And finally, the Court did not wrongly prevent the District from questioning Groomes
about her formation of a specialized juvenile unit in the Third District or her receipt of James’s
and Caudle’s applications to join the Special Operations Division. On the contrary, the District
was allowed to question Groomes on both topics. See Trial Tr. 52–54, June 23, 2010 . The
Court sustained objections only to questions that were beyond Groomes’s personal knowledge
(such as plaintiffs’ reasons for applying to the Special Operations Division, Trial Tr. 53, June 23,
2010) or simply irrelevant (such as whether the Third District juvenile unit was successful, Trial
Tr. 178, June 22, 2010).
36
* * *
In light of the foregoing, the District’s motion for a new trial must be denied. The
District has not established that “the jury verdict was a ‘seriously erroneous result’ and [that]
denial of the motion will result in a ‘clear miscarriage of justice.’” In re Lorazepam &
Clorazepate Antitrust Litig., 467 F. Supp. 2d at 87 (quoting Warren, 224 F.R.D. at 239).
C. Remittitur
Finally, the District challenges the amounts of the jury’s damage awards: $200,000 each
to Caudle and Goins, and $250,000 each to James and Smalls. See Verdict Forms [#283].22 The
District argues that these awards were influenced by the overtime charts discussed above and
were improperly punitive. The District suggests that Caudle, James, Goins, and Smalls should
receive $10,000, $7,000, $6,500, and $5,000, respectively (although it offers no basis for these
figures). Plaintiffs rejoin that the jury’s awards were reasonable and based on the evidence
adduced at trial.
Before turning to the evidentiary basis for the jury’s decisions, the Court must address the
proper methodology for gauging the propriety of a damage award. As noted above, a jury’s
award will be reduced only where “(1) the verdict is beyond all reason, so as to shock the
conscience, or (2) the verdict is so inordinately large as to obviously exceed the maximum limit
of a reasonable range within which the jury may properly operate.” Peyton, 287 F.3d at 1126
(citing Jeffries, 822 F.2d at 96; Williams, 494 F.2d at 1085). The District contends that, in
making these assessments, the Court should rely on the factors enumerated in Nyman v. FDIC,
967 F. Supp. 1562 (D.D.C. 1997), which include: the evidence produced at trial, damage awards
22
Miller received no damage award.
37
in similar cases, and both Title VII’s provision for compensatory damages and its cap of those
damages at $300,000 (for employers with more than 500 employees). Id.; see 42 U.S.C.
§ 1981a(b)(3). In considering the propriety of a $300,000 award, the Nyman court concluded that
“the maximum amount recoverable under the applicable cap . . . should be reserved for the most
egregious cases of unlawful conduct.” Nyman, 967 F. Supp. at 1572.
Relying on Nyman, the District makes a similar argument here. But, as plaintiffs observe,
the D.C. Circuit has expressly rejected this position, finding “no authority for the proposition that
cases involving some perceived or even evident degree of injury less than the most egregious
must inherently be awarded some figure lower than the cap.” Peyton, 287 F.3d at 1127. The
Peyton court also cautioned against relying too heavily on comparisons to other cases, given “the
unique circumstances of each case as well as the adjustments which would necessarily have to be
made for inflation.” Id. (quoting Mariner v. Marsden, 610 P.2d 6, 16 (Wyo. 1980)). “Rather, the
proper approach is to determine whether the judgment awarded . . . is supported by evidence, and
does not shock the conscience, or is not inordinately large so as to be obviously unreasonable.”
Id. Thus, the Court will not attempt to place plaintiffs’ injuries on some hypothetical sliding
scale of egregious employer conduct, and will instead focus on whether the jury’s awards are
supported by the evidence adduced at trial.
At trial, each plaintiff who received a damage award testified at length about the impact
of the FMU reorganization process. James described feeling “embarrassed,” “humiliated,”
“upset,” “destroyed,” and “devastated” by the District’s conduct. Trial Tr. 41, 42, 50, 88, June
15, 2010. He characterized his removal from the FMU as a “slap in [the] face” that made him
feel “laughed at,” saying that it “felt like a mother telling her child he has to leave home, he has
38
to leave his family behind.” Trial Tr. 69, 74, June 15, 2010. He described going back to patrol
as “[l]ike starting all over again.” Trial Tr. 93, June 15, 2010. He also said that he had felt
depressed and humiliated every day since being removed from the FMU, and that he frequently
cried as a result. Trial Tr. 99, June 15, 2010. And he testified that his depression has caused
“headaches, stomach pains, and verbal altercations with [his] wife.” Trial Tr. 99, June 15, 2010.
Smalls similarly reported feeling anger, humiliation, and sadness at being removed from
the FMU; he described the frustration of feeling that his peer officers believed that he had done
something wrong to warrant being reassigned, whereas he felt that he had acted properly in
speaking up. Trial Tr. 140–41, June 30, 2010. He also described a spike in his blood pressure
during the summer of 2006.
Likewise, Caudle testified that he felt hurt, embarrassed, and devastated. Trial Tr. 34, 41,
June 30, 2010. He described the humiliation of going from FMU Officer of the Year to a patrol
position, saying that his “pride was pretty much taken from all the hard work” he did, only to
have that pride of accomplishment taken away unexpectedly and unfairly. Trial Tr. 46, June 30,
2010. He explained that colleagues now “stare at [him] funny” and question his work ethic.
Trial Tr. 46, June 30, 2010. And he described experiencing headaches and trouble sleeping.
Trial Tr. 46, June 30, 2010.
Similarly, Goins described being replaced by less experienced officers as “a slap in [the]
face” and “an insult.” Trial Tr. 120, June 28, 2010. He testified that it was embarrassing,
humiliating, and stressful to have to “go into [his] office and clean out [his] desk in front of [his]
co-workers.” Trail Tr. 12, June 29, 2010. And he characterized being sent back to patrol as “like
starting all over again” and being “bust[ed] back down to the bottom.” Trail Tr. 24, June 29,
39
2010. He also described experiencing frequent (sometimes daily) headaches, which forced him
to seek medical treatment, and said that these events still impact his daily life. Trail Tr. 26, June
29, 2010.
Contrary to the District’s assertions, all of the foregoing testimony is “competent record
evidence” that supports the jury’s damage awards. See Peyton, 287 F.3d at 1127 (affirming a
damage award in a Title VII case based in part on “feelings of depression and sadness typical of
plaintiffs in Title VII cases” (internal quotation marks omitted)); Medina v. District of Columbia,
718 F. Supp. 2d 34, 57–58 (D.D.C. 2010) (finding that the plaintiff, an MPD officer, had
produced sufficient evidence to support a jury award by describing his “anguish, anxiety,” and
loss of professional reputation), rev’d on other grounds, 643 F.3d 323 (D.C. Cir. 2011). Each
plaintiff testified to the severe emotional and professional impact of the District’s actions. That
testimony is an adequate basis for the jury’s awards.
The District, however, argues that two aspects of the jury’s awards demonstrate that they
were based on improper considerations. First, the District contends that Caudle and Goins
received the same $200,000 award despite experiencing different harms, thus establishing that
the jury “did not consider each plaintiff’s claim individually.” Def.’s Mem. at 46 (citing
Alexander v. City of Jackson, 2008 WL 907658, at *4 (S.D. Miss. Mar. 31, 2008)). The District
makes the same argument as to James and Smalls, who each received $250,000. But, as
plaintiffs point out, the fact that the jury did differentiate between Caudle and Goins on one hand
and James and Smalls on the other (and awarded Miller nothing) actually suggests individualized
consideration. And this case is unlike Alexander — which the District calls “virtually identical”
— where the issue was the jury’s failure to distinguish between types of damages, not between
40
plaintiffs. See 2008 WL 907658, at *4. For example, the jury awarded one of the Alexander
plaintiffs exactly $25,084.26 for each of the four categories of damages available (past physical
harm, future physical harm, past emotional and mental harm, and future emotional and mental
harm). Id. The Alexander court understandably concluded that it was incredibly unlikely that the
jury had actually decided that the plaintiff had experienced precisely $25,084.26 worth of harm
in each of those four categories; hence the court’s conclusion that the jury “simply picked a
figure” without regard for the evidence. Id. There was no equivalent, blatant failure to consider
the facts here.23
Second, the District contends that the jury must have been influenced by Dr. Lanier’s
back-pay charts because it awarded Miller (who did not appear on the charts) nothing, but
awarded the other four plaintiffs (who did) substantial sums. This argument fares no better. As
plaintiffs point out, if the jury had pegged its awards to the back-pay charts, Smalls would have
received the lowest award, not the highest, and Smalls and James would not have received the
same award. See Pls.’ Opp’n Ex. 44 (Pls.’ Trial Ex. 11A, overtime summary tables). And the
District’s argument fails to account for the fact that the jury awards are an order of magnitude
larger than the back-pay totals on the charts. If the jury had improperly relied on these figures,
the damage awards would presumably resemble them more closely.
In sum: the jury’s awards were supported by the evidence adduced at trial and do not
appear to be based on improper considerations. Thus, the Court cannot conclude that the awards
23
Further, the Alexander court was ruling on a motion for a new trial, not a motion
for remittitur; thus, it was not applying the standard that governs here. See Alexander, 2008 WL
907658, at *2. And it had other reasons to doubt that the jury had carefully considered the
evidence presented at trial. See id. at *4.
41
shock the conscience or obviously exceed the maximum bounds of reasonableness. See Peyton,
287 F.3d at 1126. Accordingly, the District’s motion for remittitur must be denied.
IV. CONCLUSION
For the foregoing reasons, the District’s motion must be denied in its entirety.
Accordingly, it is this 19th day of August 2011 hereby
ORDERED that the District of Columbia’s motion for judgment as a matter of law, a
new trial, and remittitur [#297] is DENIED.
Henry H. Kennedy, Jr.
United States District Judge
42